Does the defence of entrapment apply to a regulatory offence?

R. v. Clothier, 2011 ONCA 27 suggests not. The narrow question decided is that government authorities can use random test shopping to monitor compliance with a particular regulatory statute – the Smoke Free Ontario Act, S.O. 1994, c. 10 – without a reasonable suspicion that the person monitored is engaged in illegal activity. In answering that question, however, the Court hinted that common law defences such as entrapment may not apply to strict liability offences. The Court holds:

[34]         The first rationale is that to permit the state to offer a person an opportunity to commit a crime without a reasonable suspicion that the person is engaged in criminal activity amounts to random virtue testing and an unjustifiable invasion of individual privacy.  This rationale does not pertain to stores selling tobacco for several related reasons. 

[35]         First, these stores operate in a regulated commercial environment, and operating in this regulatory environment comes with consequences. As Cory J. said in Wholesale Travel, at p. 229:  "… those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility."

[36]         Stores selling tobacco and their employees have this responsibility to the public. One important consequence of this responsibility is their deemed acceptance of an undertaking to exercise reasonable care to ensure that the harm identified in the regulatory statute – here selling tobacco to minors – does not occur.  This entails a further consequence.

[37]         Those who sell tobacco products must accept a greatly diminished expectation of privacy, as some form of monitoring will be necessary to ensure that they meet their due diligence responsibilities.   The monitoring is done, not to punish past conduct, as would be the case for an offence under the criminal law, but to deter harmful conduct in the future – in other words, to prevent harm to the public from the illegal sale of tobacco to minors.

[38]         These consequences, which the 7-Eleven store and Mr. Clothier must be taken to accept when they engage in the regulated activity of selling tobacco to the public, persuasively show that the first branch of the criminal law entrapment doctrine cannot be transported to a charge under the Smoke Free Ontario Act.  We recognize entrapment as a defence in criminal law because of our concern that random virtue testing will result in too great an invasion of personal privacy.  That rationale simply does not apply in this regulatory context.

[39]         A second reason why the rationale does not apply is that in using random test shopping, the government is not engaged in virtue testing; it is engaged in compliance testing. "Virtue" is irrelevant to a charge under s. 3(1) of the Smoke Free Ontario Act.  Section 3(1) is a strict liability offence.  A person can be convicted for merely being negligent.

James Morton
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